In one of the most dramatic moments in Senate history, the Democrats refused to let Roland Burris enter the Senate chamber today. Democrats do not want to recognize an appointment from Illinois Gov. Rod Blagojevich, who is accused of trying to sell the seat to replace President-elect Barack Obama. Burris attempted to be sworn in on the first day of the 111th Congress, but was told by the Secretary of the Senate that his credentials “were not in order.”
Nancy Erickson, the Senate secretary, initially cited the absence of the signature of Illinois Secretary of State Jesse White as the reason for rejecting the appointment. Burris is trying to get the Illinois Supreme Court to order White to sign the form. White has no authority to refuse his signature and is claiming the right to unilaterally block an appointment because he simply does not like or is suspicious of the appointing governor. No one has claimed that Burris bought this seat and indeed he would have been on the list of likely candidates for any governor.
It is clear that White’s actions are not true reason for extraordinary action. Senate Majority Leader Harry Reid and others stated their intention to block the appointment based on the governor’s scandal. Indeed, Reid said that, if his credentials are valid, the Senate would “proceed in a manner that is respectful to Mr. Burris, while ensuring that there is not a cloud of doubt over the appointment.”
To make matters worse, there is a rumor that Burris is being asked to guarantee that, if he is sworn in, he will not run in 2010. Given the fact that the democrats have no legal basis to deny him this appointment, such a proposal would magnify the gross abuse of power.
For Democrats who have complained about George Bush’s abusive use of authority, this is a terrible way to begin their control of both the Congress and the White House. Just as the Bush Administration argued that the President can torture because he says he can, the Democrats are claiming the right to bar any member because they can. It would create a precedent that they will regret and only fuels GOP efforts to block Al Franken. At least the GOP can cite an election controversy, the Democrats have no legal claim against this appointment.
For the full story, click here.
Josh Marshall reported, January 7, 2009, 11:41AM:At their press conference just now, Harry Reid and Dick Durbin announced that there is no action being taken on Roland Burris’ appointment to the Senate — at least not yet.
“There’s going to come a time when the entire Senate is going to have to act on this,” Reid said.
“And that day I hope would come sooner rather than later.”
Reid and Durbin both went to great lengths to say how much they like and respect Burris, and how constructive the meeting they just had with him was. But for now, they’re waiting on two things: A ruling from the state Supreme Court on whether the missing signature of Illinois Secretary of State Jesse White is required for the appointment to be valid, and for Burris’ testimony tomorrow before the Illinois House impeachment committee.ENDQUOTE
And Huffington Post just reported an apparent decision to seat Roland Burris after aides to President-elect Barack Obama contacted senior Senate Democrats and suggested that they reverse course and accept Gov. Rod Blagojevich’s controversial appointment, according to a senior Dem congressional aide. While reports signaled his imminent seating, a spokesman for Senate Majority Leader Harry Reid said the AP report was “wrong,” and that “there have been no decisions.”
Stay tuned.
This is from a radio blurb I just heard on NPR. Evidently Reid has dropped other objections to seating Burris except for waiting for a court ruling about the Sec. of State’s signature. It was only a blurb but it did appear he’d changed to this being the real objection to seating Burris. I would urge checking this out in more detail.
The Constitution provides in Art. I, sec. 5, that Each House may determine the Rules of its Proceedings.” As we have seen, it also makes each House the Elections, Returns and Qualifications of its own Members. I think Mespo has made it clear that the Burris matter is a question of elections and returns, rather than qualifications. The Powell case makes it clear that Congress cannot add extra-constitutional qualifications for a duly elected member. If Congress wants to single out a member because of bad conduct, it must act to expel by a 2-3ds vote. But Congress retains the right to investigate all elections and appointments.
The vast majority of contested election cases arise in the House, where they elect (no appointments) 435 members every two years. For the procedures on judging the “elections and returns” in contested House races, take a look at this Report:
http://assets.opencrs.com/rpts/RL33780_20070104.pdf
As noted, there have been a lot of contested House elections:
http://www.voteraction.org/files/crsreport2006.pdf
The Senate elects only 33 members each two years, does not have nearly as many contests, and does not have codified procedures for contested elections. For the last contested Senate race, see the remarks of Senator Lott, vol. 143 Cong. Rec. p. S5 (Jan 1997): http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi Sen. Lott stated that a Senator subject to a contested election may be seated “without prejudice.” This means without prejudice to the right of the Senate to determine the outcome of the contested election.
Before new Senators are sworn in, the leadership may provide for a brief status report and plan for their resolution:
http://www.senate.gov/CRSReports/crs-publish.cfm?pid=%270DP%2BPLG9%220%20%20
I think the Powell case has limited use here. First, Burris was not duly elected. He has an appointment by the Governor, but it does not carry the seal of the State of Illinois and the signature of the Secretary of State, as required by the Senate Rules. Those Rules may be a formality, but the Secretary of the Senate cannot waive them. The Rules themselves are constitutionally based and may be waived only by the Senate. At the very least, Burris should go back to Illinois and get a court-ordered seal. If he cannot get a court order, he has to ask the Senate to waive the requirement.
Second, Powell was a qualifications case, not an elections and returns case. The Burris case is about the validity of the process, not the character or deeds of the candidate. Tribe has noted that the Senate has said in advance that it would question anyone appointed under this process.
People keep saying that Blago has not been convicted or impeached. But they forget that the need for evidence beyond a reasonable doubt is the standard to keep out of jail or to avoid removal. It is not needed to open a Senate investigation into an appointment process where the Governor in his own words has stated an intent to put the Seat up for sale. There is far more than enough evidence for reasonable doubt about Blago’s intentions and for an inquiry into all the circumstances. It is more like the standard for a search warrant than a conviction.
Sorry to be late to this party but being visited by my children and grandchildren takes precedence.
Mespo, it was bound to happen at some point, but even though I have the greatest respect for your intelligence and insight, you are flat out wrong in this instance. Here again are the salient points.
1. Illinois needs both its’ Senators, now.
2. Blago has not been indicted, won’t be for at least 3 months, and the only thing against him are snippets of tapes which may
(or may not)be edited by the prosecutors,
3. FitzG is not the pristine soul the media portrays him as. His Plame investigation and prosecution smells strongly to me of a cover up of the guilt of Cheney, Rove and Bush.
4. His request for a 90 day indictment extension, on what was purported to be a “slam dunk” case, causes me to be suspicious about how strong the case really is.
5. For instance it is possible that before or after Blago said the appointment was a “gold mine” he then stated “too bad I can’t get anything for it.” Just an example of how tapes can be edited into distortion. If you think I’m crazy Google Rev. Wright’s history and you discover that other than a video loop he has been a rather distinguished Minister and not the clown the media portrays him as.
6. Blago’s appointment was lawful and the only argument against it has to be intertwined with a guilty until proven innocent mindset.
7. The Adam Clayton Powell case was a travesty of justice overturned after years of his racist exclusion. The Senate has no right to do the same based on neither evidence, impeachment or indictment.
8. Harry Reid is a Red State clown who should not be Majority Leader.
To me, at least, the logic is solid and Burris must be seated right away.
mespo,
I just don’t see how the appt. of Burris rises to “extraordinary circumstances”. This seems especially strange to me in that the Senate has ignored their duty under truly extraordinary circumstances that have arisen again and again since 2000. For one they could have blocked bush from becoming president in 2000 or 2004 if they were concerned about justice and the welfare of this nation. They have consitently violated the law, overlooked violations of the law by the executive and their own members and enabled the same. What the Senate has failed to do for 8 years is care about the rule of law nor have they cared to stand up to gross violations of human rights. So why is this matter the one thing they’ve cared about? If they had been asserting the rule of law and justice the last 8 years this matter might rise to the level of “extraordinary circumstances” but there is something passing strange about their new found worry about “taint”. The Senate’s failure to follow the law has been the much larger problem and they continue a near unbroken tradition with this case.
Mike Appleton:
“I believe that the “elections, returns” language relates to the validity of the election or the appointment process, as the case may be.”
************
I agree with you on your interpretation of the word “qualifications” in light of Powell, which I find improperly decided on the mootness issue alone. In any event,I also agree with your cited language above. It seems to me that the validity of the appointment process is at issue in those remaining two words, and the attempted sale of the seat is a bona fide reason to investigate the matter further as Vince Treachy notes. Until that is accomplished I agree with Vince that he should not serve. I also think that there is an argument that the Senate may deny membership to a class of appointees (those sent by Blogo) in this circumstance (as Professor Tribe argues) else the words “elections,” and “returns” would be surplusage in the clause. I do not think the Founders intended those terms to be precatory, and I believe it imparts to the Senate the power to deny membership in extraordinary circumstances such as these. As I have read many times on this blog, the Constitution is not a suicide pact.
A CROOK THAT PARDONED TERRORISTS AS OUR ATTORNEY GENERAL – HOLDER.
A WOMAN THAT DOESN’T RESPECT OUR BORDERS AS OUR DEPARTMENT OF HOMELAND SECURITY DIRECTOR.
A GUY WITH ZERO NATIONAL SECURITY EXPERIENCE AS OUR CIA DIRECTOR.
I GUESS UNDER OBAMA WE RUN UP THE WHITE FLAGS ON 1/21/09.
YA ALL WERE DUPED!
The whole Democratic Congress is turning out to be more crooked than the half dozen Republicans linked to Jack Abramoff.
Obama just said we would have a trillion dollar defict in 2010 and trillion dollar deficits for years. WHERE IS THE MONEY GOING?
WHERE IS THE MONEY GOING?
WHERE IS THE MONEY GOING?
WHERE IS THE MONEY GOING?
I can tell you where this money is going; to the same people that funded his campaign to buy the Presidency in 2008.
BASTARDS!
First of all,
I want to ask the resident Troll where the bank bailout one Trillion dollars that was requested by Paulson and Bush??
Secondly,
I have to admit that it is hard to listen to the Senate when they talk about an appointment being “tainted”. I think Prof. Turley is correct that the appointment is legal and until the Governor is convicted and/or impeached. If the Senate can stop a legal appointment because they think the Governor is dirty, what happened to the rule of law?
finally, Mespo, I had not seen the op-ed by Bolton and Yoo. It is so far out that I had to check my meds to make sure I wasn’t seeing pink elephants. The gall of the neocons is truly amazing.
It appears the whole Democratic Congress is turning out to be more crooked than the half dozen Republicans linked to Jack Abramoff.
PS: Obama just said we would have trillion dollar deficits for years. WHERE IS THE MONEY GOING?
WHERE IS THE MONEY GOING?
WHERE IS THE MONEY GOING?
WHERE IS THE MONEY GOING?
This was the second time mespo said it ‘right’
– in the same evening!
The point being that if the State of IL is not on top of its own affairs then the US Senate stands at the ready to take over and do what needs doing.
The message is actually very simple.
———–
# mspo727272 1, December 31, 2008 at 2:25 am
Well after seeing that incredible and pathetic press conference where Burris was named the appointee by the Governor-for-hire, and hearing him speak with the aid of his pious friend, Rep. Bobby Rush, ex-Black Panther and apparently present day race baiter, I have modified my position. I now am certain the Senate should interdict the entire State of Illinois until such time as the Governor-for-Hire is out of there and then call a special election to fill the seat. Chicago politics is crazy, but this is just plain stupid and Mr. Burris appears to have all the political and intellectual acumen of the current resident of that big white house on the opposite end of Pennsylvania Avenue from the Capitol.
# 24 Patty C 1, December 31, 2008 at 2:58 am
‘I now am certain the Senate should interdict the entire State of Illinois until such time as the Governor-for-Hire is out of there and then call a special election to fill the seat.’
—–
Me too, mespo. I watched Burris on Rachel.
The look on her face undoubtedly mirrored my own.
===
# 25 Mojo 1, December 31, 2008 at 3:42 am
Mespo and Patty C –
My sentiments exactly. This thing stinks. Their argument boils down to, “It may not be right, but it’s legal.”
Sure it is, and it still stinks.
Mespo:
“It seems to me the law is not for mindless adherence. If a valid interpretation of existing law can be made to deny a victory to corruption or its appearance, then it should be so interpreted. The law is not so clear on these facts, and if a court case needs to be filed go to it. In the meantime, let Burris sit elsewhere.”
Mespo,
I agree with Chemerinsky in so much as the opponents to the appointment of Burris have absolutely no legal leg to stand on. Burris was legally appointed by the state executive and the Illinois secretary of state has no veto power over the executive.
Further, congress was never delegated a discretionary power as to who shall serve.
From ‘POWELL v. McCORMACK’ 395 U.S. 486 at 533-534)
Citing James Madison as stating such discretionary power would be:
“an improper & dangerous power in the Legislature. The qualifications of electors and elected were fundamental articles in a Republican Govt. and ought to be fixed by the Constitution. If the Legislature [395 U.S. 486, 534] could regulate those of either, it can by degrees subvert the Constitution. A Republic may be converted into an aristocracy or oligarchy as well by limiting the number capable of being elected, as the number authorised to elect. . . . It was a power also, which might be made subservient to the views of one faction agst. another. Qualifications founded on artificial distinctions may be devised, by the stronger in order to keep out partizans of [a weaker] faction.” Id., at 249-250.”
mespo, I do give import to that language. The difficulty is that all of the comments coming from the Senate use terms that can be applied at any time in any situation to justify wholly capricious actions. To say that one is uncomfortable with the manner in which the appointment was made or that one is concerned that the appointment was tainted is singularly unhelpful in addressing the legitimate scope of the Senate’s authority under the Constitution. Indeed, I heard Sen. Reid state on “Meet the Press” that he was open to “negotiations.” Since when is the seating of a U.S. senator a matter for negotiation?
Under Article I, Section 5, the Senate has authority to judge the “elections, returns and qualifications” of its members. The “qualifications” test is met, according to Powell v. McCormack, if a senator satisfies the requirements set forth in Article I, Section 3. I believe that the “elections, returns” language relates to the validity of the election or the appointment process, as the case may be. For example, if Illinois law prohibited a governor form exercising the appointment power if there are formal criminal charges pending against him, the Senate could quite properly refuse to seat Mr. Burris. However, to my knowledge, Illinois law contains no such statutory prohibition. The fact that the process may appear distasteful under the circumstances should not be a factor in the decision.
If the Senate is permitted to refuse to seat a senator based solely upon a subjective determination that the manner in which the seat was procured is somehow offensive, albeit legal, the Seventeenth Amendment and the power of the states to control their own elections is essentially eviscerated. It is the legislative equivalent of attaching signing statements to the Constitution. The potential for abuse is enormous. Democrats have fought hard to return to power and a lot of work will need to be done to restore respect for law. Refusing to seat Mr. Burris for the reasons proffered to date is a sorry beginning to that task.
I’m not qualified to argue this level of legal complexity but there certainly seems to be a lot of “taint” going on in the US Senate. Why are some “taints” acceptable and others, not?
It appears the whole Democratic Congress is turning out to be more crooked than the half dozen Republicans linked to Jack Abramoff.
PS: Obama just said we would have trillion dollar deficits for years. WHERE IS THE MONEY GOING?
Nelson is wrong, the U.S. Constitution makes the Senate the judge of the elections returns and qualifications of Members. She may not like it, but that is the rule.
Mike Appleton is correct that the Senate is the judge, and there must be standards, but he has “yet to see a comment suggesting that the appointment of Mr. Burris violated the law of the State of Illinois.”
Excuse us. Putting a Senate seat up for sale violates the law of EVERY state.
Mr. Blagovich HIMSELF suggested that he might violate that law by selling the seat.
That was his stated intention.
Is that not enough FOR AN INVESTIGATION BY THE SENATE?
QUOTE
In the earliest intercepted conversation about the Senate seat described in the affidavit, Blagojevich told Deputy Governor A on November 3 that if he is not going to get anything of value for the open seat, then he will take it for himself: “if . . . they’re not going to offer anything of any value, then I might just take it.” Later that day, speaking to Advisor A, Blagojevich said: “I’m going to keep this Senate option for me a real possibility, you know, and therefore I can drive a hard bargain.” He added later that the seat “is a [expletive] valuable thing, you just don’t give it away for nothing.” UNQUOTE
WASHINGTON — President-elect Barack Obama warned Tuesday that the federal deficit is likely to rise to close to $1 trillion for 2009.
“We’re already looking at a $1 trillion budget deficit or close to a $1 trillion budget deficit, and potentially we’ve got $1 trillion deficits for years to come,” Mr. Obama said.
at online.wsj.com/article/SB123125893419357707.html
OBAMA IS ANNOUNCING TRILLION DOLLAR DEFICITS FOR YEARS TO COME!
Yup, Obama & the Democrats are going to bankrupt America.
Jill:
I appreciate Sophia Nelson’s take on things, but as a Republican she likely has less than noble or objective reasons for judging the leadership of a party that just knocked hers from power. It seems to me the law is not for mindless adherence. If a valid interpretation of existing law can be made to deny a victory to corruption or its appearance, then it should be so interpreted. The law is not so clear on these facts, and if a court case needs to be filed go to it. In the meantime, let Burris sit elsewhere.
The following was written by Sophia Nelson.
“llinois Gov. Rod Blagojevich’s choice of a veteran black politician Roland Burris to fill President-elect Barack Obama’s vacant Senate seat should be certified by the Illinois Secretary of State. Period.
This is clearly a state issue and NOT one to be decided by Harry Reid in the Senate. In my legal and political opinion, the Secretary of State should be fired because he has refused to enforce a legal appointment by the sitting Governor of the State of Illinois.
I am stunned at what I am hearing on TV and from the politicians. Particularly those in the democratic party. Rod Blagojevich is the Governor of Illinois–like it or not. He is. He has NOT YET been indicted or found guilty of impeachable crimes. In America folks, we live by the rule of law–innocent till proven guilty. We are flirting with disaster if we start throwing political leaders out of office because of what we heard they might have done, or if we don’t like what they did.
The prosecutor needs to do his job and quickly–not 90 days from now. … While I did not approve of the Governor’s apparent violations of professional ethics–he is the Governor until he is removed from office by the legislature or people of Illinois.”
Gyges,
Congratulations on your child turning one. That’s a big deal. Happy Birthday is in order!